That is the headline of my oped in today's National Law Journal, discussing the Court's approach to judicial bias. Here is the gist:
How should we interpret our Constitution? Is it a living document, to be read in the context of present conditions and current knowledge, or should it be strictly limited by the "original meaning" on the day it was ratified? Although the debate may be unresolvable, the case of Williams v. Pennsylvania, recently decided by the U.S. Supreme Court, provides an almost textbook example of the contrast between the two methods. Justice Anthony Kennedy took a decidedly "living Constitution" approach to the case, while Justice Clarence Thomas addressed the central issue on originalist grounds. The difference was a matter of life or death.
Thomas' extreme version of originalism, which is fixed in an era long before psychology and cognition science emerged as rigorous disciplines, makes progress impossible. If a likely cause of judicial prejudice was unappreciated in the late 18th century, Thomas' jurisprudence would take no account of it today. No matter how much we have come to know about predisposition and unconscious bias, that information could play no part in constitutional decision-making. History, in Thomas' view, trumps science.
Kennedy's approach is far wiser and much sounder, relying on living insights into judicial (and other) decision-making that were unavailable to the founding generation. Bias, Kennedy observed, is too "difficult to discern in oneself." Thus, Thomas' originalist presumption of nearly absolute judicial impartiality must give way to informed psychology. "When a judge has served as an advocate for the State in the very case the court is now asked to adjudicate," wrote Kennedy, "a serious question arises as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome."
You can read the entire article here.
[Cross posted from The Faculty Lounge]